Not exactly the same way it is told in the Old Testament in I Kings – and the Judge is not calling for a sword to cut a child in half – but in modern day terms the result is similar. The concept of letting one parent be the primary parent for one child and the other parent be the primary parent for the other child is often times brought up in settlement discussions – and occasionally trials – in custody litigation. In essence – proposing that the siblings be split between the two parents’ homes. There can be logical and psychological reasons for this. A large disparity of ages in the children can cause this idea to be a practical solution. A child is estranged from one parent and the other is not. The parents reside a long distance apart. One parent may reside in a school district that is better suited for developing the talents and skills of one of the children. Or, it can be as plain and simple as splitting the kids will make all the problems the parents are fighting over concerning child support, possession and access, and co-parenting decisions go away.
The problem with this concept is two-fold. First, the law has a statutory presumption that siblings should not be split. Not all presumptions in the law are created “equal” – and this one is certainly one of the step-children of the legal presumptions world. Second, there is sound psychological and real life evidence to back up the presumption. The idea of brothers and sisters having a shared past in spite of the divorce, keeping together during the divorce, and now experiencing a shared future after the divorce is very beneficial for them. Siblings can provide each other with a shared sense of support. The attachment and bonds formed during childhood between siblings lasts a lifetime. Siblings can provide each other with the kind of back-and-forth sharing which helps to build up a sense of identity for them and the shared experiences they have will become part of that identity.
So, what should a Judge (or the parties) do when faced with this predicament? The Judge is going to approve the settlement proposed by the parents unless there is extraordinary facts that make this proposal unworkable. The Courts are not going to set aside a decision that the two most important persons in these children’s lives have made. Should the parents then make this decision to split their children? Based on what I have seen in my long career in family law when this has been done – an emphatic NO! Just like the real mother did in Solomon’s judgment to save her child, let the other side have the children rather than risk harming their emotional and physical well- being. The situations I have seen where this plan has been instituted by the parents have ended up very sad and the children damaged severely. Maybe the result was caused by the poor parenting of both parties. Maybe it was caused by the genetic psychological makeup of the children. Who knows and there is no such thing in the law as a post-divorce “autopsy” to figure out the cause. In the final analysis – all you have left is either healthy adults thriving in the world – or damaged adults who will struggle all their lives to overcome what happened to them. Splitting brothers and sisters over two households adds to the probability that there will be damage. The short term cost of giving up the fight and letting the children go – even if it costs you child support to pay – is far less than the cost you will pay after the children become adults. The burden will be greater on you while they are growing up to maintain that close relationship while they reside together at your ex’s house – but nobody ever said being the better parent came with awards and accolades or was going to be easy. It only comes with the sense of knowing inside you that you put your kids first and did what was truly in their “best interests”.